Trial - Request to Charge (Plaintiff's) (H0629576.DOC;1)



UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

| |Civil Action No: |

|ARRELLO BARNES, |04-CV-0391 |

|Plaintiff, |(LES/DEP) |

|v. | |

|THOMAS RICKS, et al., | |

|Defendants. | |

PLAINTIFF’S REQUEST TO CHARGE

The plaintiff hereby submits the attached Requests to Charge in this action. The following is an index of the plaintiff’s proposed requests:

|Charge No. |Subject |Page |

| |General Introduction – Province Of The Court And Jury |4 |

| |All Persons Equal Before The Law – Organizations |6 |

| |Evidence In The Case – Stipulations – Judicial Notes – Inferences Permitted |7 |

| |Consideration Of The Evidence – New York State’s Agents And Employees |8 |

| |Court’s Comments Not Evidence |9 |

| |Questions Not Evidence |10 |

| |Preponderance Of The Evidence |11 |

| |“If You Find” Of “If You Decide” |13 |

| |Evidence – Direct – Indirect Or Circumstantial |14 |

| |Inferences Defined – Presumption Of Regularity – Ordinary Course Of Business – Obedience To Law | |

| | |15 |

| |Oral Admissions – Viewed With Caution |16 |

| |Number Of Witnesses |17 |

| |Single Witness |18 |

| |Failure To Call Available Witness |19 |

| |Failure To Produce Available Evidence |20 |

| |Answers To Interrogatories |21 |

| |Credibility Of Witnesses – Discrepancies In Testimony |22 |

| |Depositions – Use As Evidence |24 |

| |Effect Of Prior Inconsistent Statements Or Conduct – By A Witness Not A Party – By A Party | |

| | |25 |

| |All Available Evidence Need Not Be Produced |26 |

| |Nature Of Plaintiff’s Claim |27 |

| |42 U.S.C. § 1983 – The Statute |28 |

| |Essential Elements Of Plaintiff’s Claim |30 |

| |First Element - Color Of Law |31 |

| |Second Element – Pervasive Risk of Harm |32 |

| |Second Element – Conditions of Confinement |34 |

| |Burden of Proof and Qualified Immunity |36 |

| |Compensatory Damages |39 |

| |Punitive Damages |41 |

| |Effect of Instruction as to Damages |43 |

| |Verdict – Unanimous – Duty to Deliberate |44 |

| |Election of Foreperson – Special Verdict |45 |

| |Verdict Forms – Jury’s Responsibility |47 |

| |Communication Between Court and Jury During Deliberations |48 |

Dated: June 30, 2006

Syracuse, New York Respectfully submitted,

Hancock & Estabrook, LLP

By:___________________________

Thomas C. Cambier, Esq.

Bar Roll No: 513780

Trial Counsel for Pro Se Plaintiff

Office and P.O.Address

1500 Tower I – P.O. Box 4976

Syracuse, New York 13221-4976

Telephone: (315) 471-3151

Telecopier: (315) 471-3167

Arrello Barnes, Pro Se Plaintiff

00-A-05597

Southport Correctional Facility

P.O. Box 2000

Pine City, New York 14901-2000

TO: Eliot Spitzer,

Attorney General of the State of New York

Attorney for Defendants

Office and P.O. Address

The Capitol

Albany, New York 12224-0341

Telephone: (518) 473-6288

Telecopier: (518) 473-1572

DOL #: 04-007073-O

Roger W. Kinsey, Of Counsel

Assistant Attorney General

Bar Roll No: 508171

Lawrence K. Baerman, Clerk

United States District Court

Northern District of New York

Federal Building and Courthouse

100 South Clinton Street

P.O. Box 7367

Syracuse, New York 13261-7367

REQUESTED JURY INSTRUCTION NO. 1

GENERAL INTRODUCTION – PROVINCE

OF THE COURT AND JURY

NOW THAT YOU HAVE HEARD THE EVIDENCE AND THE ARGUMENTS, IT BECOMES MY DUTY TO GIVE YOU THE INSTRUCTIONS OF THE COURT AS TO THE LAW APPLICABLE TO THIS CASE.

IT IS YOUR DUTY AS JURORS TO FOLLOW THE LAW AS I SHALL STATE IT TO YOU, AND TO APPLY THAT LAW TO THE FACTS AS YOU FIND THEM FROM THE EVIDENCE IN THE CASE. YOU ARE NOT TO SINGLE OUT ONE INSTRUCTION ALONE AS STATING THE LAW, BUT MUST CONSIDER THE INSTRUCTIONS AS A WHOLE. NEITHER ARE YOU TO BE CONCERNED WITH THE WISDOM OF ANY RULE OF LAW STATED BY ME.

COUNSEL HAVE QUITE PROPERLY REFERRED TO SOME OF THE GOVERNING RULES OF LAW IN THEIR ARGUMENTS. IF, HOWEVER, ANY DIFFERENCE APPEARS TO YOU BETWEEN THE LAW AS STATED BY COUNSEL AND THAT STATED BY THE COURT IN THESE INSTRUCTIONS, YOU ARE OF COURSE TO BE GOVERNED BY THE COURT’S INSTRUCTIONS.

NOTHING I SAY IN THESE INSTRUCTIONS IS TO BE TAKEN AS AN INDICATION THAT I HAVE ANY OPINION ABOUT THE FACTS OF THE CASE, OR WHAT THAT OPINION IS. IT IS NOT MY FUNCTION TO DETERMINE THE FACTS, BUT RATHER YOURS.

YOU MUST PERFORM YOUR DUTIES AS JURORS WITHOUT BIAS OR PREJUDICE AS TO ANY PARTY. THE LAW DOES NOT PERMIT YOU TO BE GOVERNED BY SYMPATHY, PREJUDICE OR PUBLIC OPINION. ALL PARTIES EXPECT THAT YOU WILL CAREFULLY AND IMPARTIALLY CONSIDER ALL OF THE EVIDENCE, FOLLOW THE LAW AS IT IS NOW BEING GIVEN TO YOU, AND REACH A VERDICT, REGARDLESS OF THE CONSEQUENCES.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 71.01 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 2

ALL PERSONS EQUAL BEFORE THE LAW – ORGANIZATIONS

THIS CASE SHOULD BE CONSIDERED AND DECIDED BY YOU AS AN ACTION BETWEEN PERSONS OF EQUAL STANDING IN THE COMMUNITY, OF EQUAL WORTH, AND HOLDING THE SAME OR SIMILAR STATIONS OF LIFE. A PRIVATE INDIVIDUAL IS ENTITLED TO THE SAME FAIR TRIAL AT YOUR HANDS AS THE STATE OF NEW YORK. ALL PERSONS, INCLUDING CORPORATIONS, PARTNERSHIPS, UNINCORPORATED ASSOCIATIONS, THE STATE OF NEW YORK AND OTHER ORGANIZATIONS, STATED EQUAL BEFORE THE LAW, AND ARE TO BE DEALT WITH AS EQUALS IN A COURT OF JUSTICE.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 71.04 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 3

EVIDENCE IN THE CASE – STIPULATIONS –

JUDICIAL NOTICE – INFERENCES PERMITTED

STATEMENTS AND ARGUMENTS OF COUNSEL ARE NOT EVIDENCE IN THE CASE. WHEN, HOWEVER, THE ATTORNEYS ON BOTH SIDES STIPULATED OR AGREE AS TO THE EXISTENCE OF A FACT, THE JURY MUST, UNLESS OTHERWISE INSTRUCTED, ACCEPT THE STIPULATION AND REGARD THAT FACT AS PROVED.

THE COURT MAY TAKE JUDICIAL NOTICE OF CERTAIN FACTS OR EVENTS. WHEN THE COURT DECLARES IT WILL TAKE JUDICIAL NOTICE OF SOME FACT OR EVENT, THE JURY MUST, UNLESS OTHERWISE INSTRUCTED, ACCEPT THE COURT’S DECLARATION AS EVIDENCE, AND REGARD AS PROVED THE FACT OR EVENT WHICH HAS BEEN JUDICIALLY NOTICED.

ANY EVIDENCE AS TO WHICH AN OBJECTION WAS SUSTAINED BY THE COURT, AND ANY EVIDENCE ORDERED STRICKEN BY THE COURT, MUST BE ENTIRELY DISREGARDED.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 71.08 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 4

CONSIDERATION OF THE EVIDENCE –

NEW YORK STATE’S AGENTS AND EMPLOYEES

WHEN THE STATE OF NEW YORK IS INVOLVED, OF COURSE, IT MAY ACT ONLY THROUGH NATURAL PERSONS AS ITS AGENTS OR EMPLOYEES; AND, IN GENERAL, ANY AGENT OR EMPLOYEE OF THE STATE MAY BIND THE STATE BY HIS ACTS AND DECLARATIONS MADE WHILE ACTING WITHIN THE SCOPE OF HIS AUTHORITY DELEGATED TO HIM BY THE STATE, OR WITHIN THE SCOPE OF HIS DUTIES AS AN EMPLOYEE OF THE STATE.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 71.09 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 5

COURT’S COMMENTS NOT EVIDENCE

THE LAW OF THE UNITED STATES PERMITS THE JUDGE TO COMMENT TO THE JURY ON THE EVIDENCE IN THE CASE. SUCH COMMENTS ARE ONLY THE EXPRESSION OF THE JUDGE’S OPINIONS AS TO THE FACTS; YOU MAY DISREGARD THEM ENTIRELY, SINCE YOU AS JURORS ARE THE SOLE JUDGES OF THE FACTS.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 71.11 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 6

QUESTIONS NOT EVIDENCE

IF A LAWYER ASKS A WITNESS A QUESTION WHICH CONTAINS AN ASSERTION OF FACT, YOU MAY NOT CONSIDER THE ASSERTION AS EVIDENCE OF THAT FACT. THE LAWYER’S STATEMENTS ARE NOT EVIDENCE.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 71.12 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 7

PREPONDERANCE OF THE EVIDENCE

THE BURDEN IS ON THE PLAINTIFF IN A CIVIL ACTION, SUCH AS THIS, TO PROVE EVERY ESSENTIAL ELEMENT OF HIS CLAIM BY A PREPONDERANCE OF THE EVIDENCE. IF THE PROOF SHOULD FAIL TO ESTABLISH ANY ESSENTIAL ELEMENT OF PLAINTIFF’S CLAIM BY A PREPONDERANCE OF THE EVIDENCE IN THE CASE, THE JURY SHOULD FIND FOR THE DEFENDANTS AS TO THAT CLAIM.

AS TO CERTAIN AFFIRMATIVE DEFENSES WHICH WILL BE DISCUSSED LATER IN THESE INSTRUCTIONS, HOWEVER, THE BURDEN OF ESTABLISHING THE ESSENTIAL FACTS IS ON THE DEFENDANTS, AS I WILL EXPLAIN.

TO “ESTABLISH BYA PREPONDERANCE OF THE EVIDENCE” MEANS TO PROVE THAT SOMETHING IS MORE LIKELY SO THAN NOT SO. IN OTHER WORDS, A PREPONDERANCE OF THE EVIDENCE IN THE CSE MEANS SUCH EVIDENCE AS, WHEN CONSIDERED AND COMPARED WITH THAT OPPOSED TO IT, HAS MORE CONVINCING FORCE, AND PRODUCES IN YOUR MINDS BELIEF THAT WHAT IS SOUGHT TO BE PROVED IS MORE LIKELY TRUE THAN NOT TRUE. THE RULE DOES NOT, OF COURSE, REQUIRE PROOF TO AN ABSOLUTE CERTAINTYU, SINCE PROOF TO AN ABSOLUTE CERTAINTY IS SELDOM POSSIBLE IN ANY CASE.

IN DETERMINING WHETHER ANY FACT IN ISSUE HAS BEEN PROVED BY A PREPONDERANCE OF THE EVIDENCE IN THE CASE, THE JURY MAY, UNLESS OTHERWISE INSTRUCTED, CONSIDER THE TESTIMONY OF ALL WITNESSES, REGARDLESS OF WHO MAY HAVE CALLED THEM, AND ALL EXHIBITS RECEIVED IN EVIDENCE, REGARDLESS OF WHO MAY HAVE PRODUCED THEM.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 72.01 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 8

“IF YOU FIND” OR “IF YOU DECIDE”

WHEN I SAY IN THESE INSTRUCTIONS THAT A PARTY HAS THE BURDEN OF PROOF ON ANY PROPOSITION, OR USE THE EXPRESSION “IF YOU FIND”, OR “IF YOU DECIDE”, I MEAN YOU MUST BE PERSUADED, CONSIDERING ALL THE EVIDENCE IN THE CASE, THAT THE PROPOSITION IS MORE PROBABLY TRUE THAN NOT TRUE..

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 72.02 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 9

EVIDENCE – DIRECT – INDIRECT OR CIRCUMSTANTIAL

THERE ARE, GENERALLY SPEAKING, TWO TYPES OF EVIDENCE FROM WHICH A JURY MAY PROPERLY FIND THE TRUTH AS TO THE FACTS OF THE CASE. ONE IS DIRECT EVIDENCE – SUCH A TESTIMONY OF AN EYEWITNESS. THE OTHER IS INDIRECT OR CIRCUMSTANTIAL EVIDENCE – THE PROOF OF A CHAIN OF CIRCUMSTANCES POINTING TO THE EXISTENCE OR NON-EXISTENCE OF CERTAIN FACTS.

AS A GENERAL RULE, THE LAW MAKES NO DISTINCTION BETWEEN DIRECT OR CIRCUMSTANTIAL EVIDENCE, BUT SIMPLY REQUIRES THAT THE JURY FIND THE FACTS IN ACCORDANCE WITH THE PREPONDERANCE OF ALL THE EVIDENCE IN THE CASE, BOTH DIRECT AND CIRCUMSTANTIAL.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 72.03 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 10

INFERENCES DEFINED – PRESUMPTION OF REGULARITY –

ORDINARY COURSE OF BUSINESS – OBEDIENCE TO LAW

YOU ARE TO CONSIDER ONLY THE EVIDENCE IN THIS CASE. BUT IN YOUR CONSIDERATION OF THE EVIDENCE YOU ARE NOT LIMITED TO THE BALD STATEMENTS OF THE WITNESSES. IN OTHER WORDS, YOU ARE NOT LIMITED TO WHAT YOU SEE AND HEAR AS THE WITNESSES TESTIFY. YOU ARE PERMITTED TO DRAW, FROM FACTS WHICH HAVE BEEN PROVED, SUCH REASONABLE INFERENCES AS SEEM JUSTIFIED IN THE LIGHT OF YOUR EXPERIENCE.

INFERENCES ARE DEDUCTIONS OR CONCLUSIONS WHICH REASON AND COMMON SENSE LEAD THE JURY TO DRAW FROM FACTS WHICH HAVE BEEN ESTABLISHED BY THE EVIDENCE IN THE CASE.

UNLESS AND UNTIL OUTWEIGHED BY EVIDENCE IN THE CASE TO THE CONTRARY, YOU MAY FIND THAT OFFICIAL DUTY HAS BEEN REGULARLY PERFORMED; THAT PRIVATE TRANSACTIONS HAVE BEEN FAIR AND REGULAR; THAT THE ORDINARY COURSE OF BUSINESS OR EMPLOYMENT HAS BEEN FOLLOWED; THAT THINGS HAVE HAPPENED ACCORDING TO THE ORDINARY COURSE OF NATURE AND THE ORDINARY HABITS OF LIFE; AND THAT THE LAW HAS BEEN OBEYED.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 72.04 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 11

ORAL ADMISSIONS – VIEWED WITH CAUTION

EVIDENCE AS TO ANY ORAL ADMISSIONS, CLAIMED TO HAVE BEEN MADE OUTSIDE OF COURT BY A PARTY TO ANY CASE, SHOULD ALWAYS BE CONSIDERED WITH CAUTION AND WEIGHED WITH GREAT CARE. THE PERSON MAKING THE ALLEGED ADMISSION MAY HAVE BEEN MISTAKEN, OR MAY NOT HAVE EXPRESSED CLEARLY THE MEANING INTENDED; OR THE WITNESS TESTIFYING TO AN ALLEGED ADMISSION MAY HAVE MISUNDERSTOOD, OR MAY HAVE MISQUOTED WHAT WAS ACTUALLY SAID. HOWEVER, WHEN AN ORAL ADMISSION MADE OUTSIDE OF COURT IS PROVED BY RELIABLE EVIDENCE, SUCH AN ADMISSION MAY BE TREATED AS TRUSTWORTHY, AND SHOULD BE CONSIDERED ALONG WITH ALL OTHER EVIDENCE IN THE CASE.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 72.12 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 12

NUMBER OF WITNESSES

YOU ARE NOT BOUND TO DECIDE ANY ISSUE OF FACT IN ACCORDANCE WITH THE TESTIMONY OF ANY NUMBER OF WITNESSES WHICH DOES NOT PRODUCE IN YOUR MINDS BELIEF IN THE LIKELIHOOD OF TRUTH, AS AGAINST THE TESTIMONY OF A LESSER NUMBER OF WITNESSES OR OTHER EVIDENCE WHICH DOES PRODUCE SUCH BELIEF IN YOUR MINDS. THE TEST IS NOT WHICH SIDE BRINGS THE GREATER NUMBER OF WITNESSES, OR PRESENTS THE GREATER QUANTITY OF EVIDENCE; BUT WHICH WITNESS, AND WHICH EVIDENCE, APPEALS TO YOUR MINDS AS BEING MORE ACCURATE, AND OTHERWISE TRUSTWORTHY.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 72.13 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 13

SINGLE WITNESS

THE TESTIMONY OF A SINGLE WITNESS WHICH PRODUCED IN YOUR MINDS BELIEF IN THE LIKELIHOOD OF TRUTH IS SUFFICIENT FOR THE PROOF OF ANY FACT, AND WOULD JUSTIFY A VERDICT IN ACCORDANCE WITH SUCH TESTIMONY, EVEN THOUGH A NUMBER OF WITNESSES MAY HAVE TESTIFIED TO THE CONTRARY, IF, AFTER CONSIDERATION OF ALL THE EVIDENCE IN THE CASE, YOU HOLD GREATER BELIEF IN THE ACCURACY AND RELIABILITY OF THE ONE WITNESS.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 72.14 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 14

FAILURE TO CALL AVAILABLE WITNESS

IF A PARTY FAILS TO CALL A PERSON WHO POSSESSES KNOWLEDGE ABOUT THE FACTS IN ISSUE, AND WHO IS REASONABLY AVAILABLE TO HIM, AND WHO IS NOT EQUALLY AVAILABLE TO THE OTHER PARTY, THEN YOU MAY INFER THAT THE TESTIMONY OF THAT WITNESS IS UNFAVORABLE TO THE PARTY WHO COULD HAVE CALLED HIM AND DID NOT.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 71.15 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 15

FAILURE TO PRODUCE AVAILABLE EVIDENCE

IF A PARTY FAILS TO PRODUCE EVIDENCE WHICH IS UNDER HIS CONTROL AND REASONABLY AVAILABLE TO HIM AND NOT REASONABLY AVAILABLE TO THE ADVERSE PARTY, THEN YOU MAY INFER THAT THE EVIDENCE IS UNFAVORABLE TO THE PARTY WHO COULD HAVE PRODUCED IT AND DID NOT.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 72.16 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 16

ANSWERS TO INTERROGATORIES

EACH PARTY HAS INTRODUCED INTO EVIDENCE CERTAIN INTERROGATORIES – THAT IS QUESTIONS, TOGETHER WITH ANSWERS SIGNED AND SWORN TO BY THE OTHER PARTY. A PARTY IS BOUND BY ITS SWORN ANSWERS.

BY INTRODUCING AN OPPOSING PARTY’S ANSWERS TO INTERROGATORIES, HOWEVER, A PARTY DOES NOT BIND ITSELF TO THESE ANSWERS, AND IT MAY CHALLENGE THEM IN WHOLE OR IN PART OR MAY OFFER CONTRARY EVIDENCE.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 72.19 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 17

CREDIBILITY OF WITNESSES –

DISCREPANCIES IN TESTIMONY

YOU, AS JURORS, AS THE SOLE JUDGES OF THE CREDIBILITY OF THE WITNESSES AND THE WEIGHT THEIR TESTIMONY DESERVES. YOU MAY BE GUIDED BY THE APPEARANCE AND CONDUCT OF THE WITNESS, OR BY THE MANNER IN WHICH THE WITNESS TESTIFIES, OR BY THE CHARACTER OF THE TESTIMONY GIVEN, OR BY EVIDENCE TO THE CONTRARY OF THE TESTIMONY GIVEN.

YOU SHOULD CAREFULLY SCRUTINIZE ALL THE TESTIMONY GIVEN, THE CIRCUMSTANCES UNDER WHICH EACH WITNESS HAS TESTIFIED, AND EVERY MATTER IN EVIDENCE WHICH TENDS TO SHOW WHETHER A WITNESS IS WORTHY OF BELIEF. CONSIDER EACH WITNESS’S INTELLIGENCE, MOTIVE AND STATE OF MIND, AND DEMEANOR OR MANNER WHILE ON THE STAND. CONSIDER THE WITNESS’S ABILITY TO OBSERVE THE MATTERS AS TO WHICH HE HAS TESTIFIED, AND WHETHER HE IMPRESSES YOU AS HAVING AN ACCURATE RECOLLECTION OF THESE MATTERS. CONSIDER ALSO ANY RELATION EACH WITNESS MAY BEAR TO EITHER SIDE OF THE CASE; THE MANNER IN WHICH EACH WITNESS MIGHT BE AFFECTED BY THE VERDICT; AND THE EXTENT TO WHICH, IF AT ALL, EACH WITNESS IS EITHER SUPPORTED OR CONTRADICTED BY OTHER EVIDENCE IN THE CASE.

INCONSISTENCIES OR DISCREPANCIES IN THE TESTIMONY OF A WITNESS, OR BETWEEN THE TESTIMONY OF DIFFERENT WITNESSES, MAY OR MAY NOT CAUSE THE JURY TO DISCREDIT SUCH TESTIMONY. TWO OR MORE PERSONS WITNESSING AN INCIDENT OR A TRANSACTION MAY SEE OR HEAR IT DIFFERENTLY; AND INNOCENT MISRECOLLECTION, LIKE FAILURE OF RECOLLECTION, IS NOT AN UNCOMMON EXPERIENCE. IN WEIGHING THE EFFECT OF A DISCREPANCY, ALWAYS CONSIDER WHETHER IT PERTAINS TO A MATTER OF IMPORTANCE OR AN UNIMPORTANT DETAIL, AND WHETHER THE DISCREPANCY RESULTS FROM INNOCENT ERROR OR INTENTIONAL FALSEHOOD.

AFTER MAKING YOUR OWN JUDGMENT, YOU WILL GIVE THE TESTIMONY OF EACH WITNESS SUCH WEIGHT, IF ANY, AS YOU MAY THINK IT DESERVES.

YOU MAY, IN SHORT, ACCEPT OR REJECT THE TESTIMONY OF ANY WITNESS IN WHOLE OR IN PART.

ALSO, THE WEIGHT OF THE EVIDENCE IS NOT NECESSARILY DETERMINED BY THE NUMBER OF WITNESSES TESTIFYING TO THE EXISTENCE OR NON-EXISTENCE OF ANY FACT. YOU MAY FIND THAT THE TESTIMONY OF A SMALL NUMBER OF WITNESSES AS TO ANY FACT IS MORE CREDIBLE THAN THE TESTIMONY OF A LARGER NUMBER OF WITNESSES TO THE CONTRARY.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 73.01 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 18

DEPOSITIONS – USE AS EVIDENCE

DURING THE TRIAL OF THIS CASE, CERTAIN TESTIMONY HAS BEEN PRESENTED TO YOU BY WAY OF DEPOSITION, CONSISTING OF SWORN RECORDED ANSWERS TO QUESTIONS ASKED OF THE WITNESS IN ADVANCE OF THE TRIAL BY ONE OR MORE OF THE ATTORNEYS FOR THE PARTIES TO THE CASE. THE TESTIMONY OF A WITNESS WHO, FOR SOME REASON, CANNOT BE PRESENT TO TESTIFY FROM THE WITNESS STAND MAY BE PRESENTED IN WRITING UNDER OATH (OR ON A VIDEO RECORDING PLAYED ON A TELEVISION SET). SUCH TESTIMONY IS ENTITLED TO THE SAME CONSIDERATION, AND IS TO BE JUDGED AS TO CREDIBILITY, AND WEIGHED, AND OTHERWISE CONSIDERED BY THE JURY, INSOFAR AS POSSIBLE, IN THE SAME WAY AS IF THE WITNESS HAD BEEN PRESENT, AND HAD TESTIFIED FROM THE WITNESS STAND.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 73.02 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 19

EFFECT OF PRIOR INCONSISTENT STATEMENTS

OR CONDUCT – BY A WITNESS NOT A PARTY – BY A PARTY

EVIDENCE THAT AT SOME OTHER TIME A WITNESS, NOT A PARTY TO THIS ACTION, HAS SAID OR DONE SOMETHING WHICH IS INCONSISTENT WITH THE WITNESS’S TESTIMONY AT THE TRIAL, MAY BE CONSIDERED FOR THE SOLE PURPOSE OF JUDGMENT THE CREDIBILITY OF THE WITNESS BUT MAY NEVER BE CONSIDERED AS EVIDENCE OF PROOF OF THE TRUTH OF ANY SUCH STATEMENT.

WHERE, HOWEVER, THE WITNESS IS A PARTY TO THE CASE, AND BY SUCH STATEMENT, OR OTHER CONDUCT, ADMITS SOME FACT OR FACTS AGAINST HIS INTEREST, THEN SUCH STATEMENT OR OTHER CONDUCT, IF KNOWINGLY MADE OR DONE, MAY BE CONSIDERED AS EVIDENCE OF THE TRUTH OF THE FACT OR FACTS SO ADMITTED BY SUCH PARTY, AS WELL AS FOR THE PURPOSE OF JUDGING THE CREDIBILITY OF THE PARTY AS A WITNESS.

AN ACT OR OMISSION IS “KNOWINGLY” DONE, IF DONE VOLUNTARILY AND INTENTIONALLY, AND NOT BECAUSE OF MISTAKE OR ACCIDENT OR OTHER INNOCENT REASON.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 73.09 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 20

ALL AVAILABLE EVIDENCE NEED NOT BE PRODUCED

THE LAW DOES NOT REQUIRE ANY PARTY TO CALL AS WITNESSES ALL PERSONS WHO MAY HAVE BEEN PRESENT AT ANY TIME OR PLACE INVOLVED IN THE CASE, OR WHO MAY APPEAR TO HAVE SOME KNOWLEDGE OF THE MATTERS IN ISSUE AT THIS TRIAL. NOR DOES THE LAW REQUIRE ANY PARTY TO PRODUCE AS EXHIBITS ALL PAPERS AND THINGS MENTIONED IN THE EVIDENCE IN THE CASE.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 73.11 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 21

NATURE OF PLAINTIFF’S CLAIM

THE EIGHTH AMENDMENT TO THE CONSTITUTION PROVIDES THAT NO CRUEL AND UNUSUAL PUNISHMENT MAY BE INFLICTED. PLAINTIFF, ARRELLO BARNES WAS AN INMATE AT UPSTATE CORRECTIONAL FACILITY DURING THE TIME RELEVANT TO THIS TRIAL. PLAINTIFF, MR. BARNES, CLAIMS THAT DEFENDANT PRISON OFFICIALS DENIED PLAINTIFF’S EIGHTH AMENTMENT RIGHTS BY SERVING HIM A MEAL EMBEDDED WITH GLASS.

DEFENDANT PRISON OFFICIALS DENY THAT THEY DEPRIVED PLAINTIFF, MR. BARNES OF HIS RIGHTS UNDER THE EIGHTH AMENDMENT. IT IS YOUR RESPONSIBILITY TO DECIDE WHETHER PLAINTIFF HAS PROVEN HIS CLAIM AGAINST THE DEFENDANTS BY A PREPONDERANCE OF THE EVIDENCE.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 104.01 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 22

42 U.S.C. 1983 – THE STATUTE

The law to be applied in this case is the Federal Civil Rights Law which provides a remedy for individuals who have been deprived of their constitutional rights under color of state law. Section 1983 of Title 42 of the United States Code states:

Every person who, under color of any statute, ordinance, regulation, custom or usage of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Section 1983 creates a form of liability in favor of persons who have been deprived of rights, privileges and immunities secured to them by the United States Constitution and federal statutes. Before Section 1983 was enacted in 1871, people so injured were not able to sue state officials or persons acting under color of state law for money damages in federal court. In enacting the statute, Congress intended to create a remedy as broad as the protection provided by the Fourteenth Amendment and federal laws. Section 1983 was enacted to give people a federal remedy enforceable in federal court because it was feared that adequate protection of federal rights might not be available in state courts.2

REQUESTED JURY INSTRUCTION NO. 23

ESSENTIAL ELEMENTS OF PLAINTIFF’S CLAIM

IN ORDER TO PREVAIL ON HIS CLAIMS, THE PLAINTIFF MUST PROVE, BY A PREPONDERANCE OF THE EVIDENCE:

1. THE DEFENDANTS ACTED UNDER COLOR OF STATE LAW; AND

2. THAT THE CONDUCT OR ACTIONS OF THE DEFENDANTS DEPRIVED PLAINTIFF OF A RIGHT, PRIVILEGE OR IMMUNITY GUARANTEED BY THE CONSTITUTION OF LAWS OF THE UNITED STATES OF AMERICA..

Source: 1. Rivera v. Goord, 2000 WI. 1425044 *1 (S.D.N.Y. 2000).

REQUESTED JURY INSTRUCTION NO. 24

FIRST ELEMENT - COLOR OF LAW

STATE OFFICIALS ACT “UNDER COLOR” OF THE AUTHORITY OF THE STATE WHEN THEY ACT WITHIN THE LIMITS OF THEIR LAWFUL AUTHORITY. HOWEVER, THEY ALSO ACT “UNDER COLOR” OF THE AUTHORITY OF THE STATE WHEN THEY ACT WITHOUT LAWFUL AUTHORITY IF THEIR ACTS ARE DONE WHILE THE OFFICIALS ARE PURPORTING OR PRETENDING TO ACT IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. AN OFFICIAL ACTS “UNDER COLOR” OF STATE AUTHORITY IF HE ABUSES OR MISUSES A POWER THAT HE POSSESSES ONLY BECAUSE HE IS AN OFFICIAL.

Source: 1. Pattern Jury Instructions, 5th Cir. – Civil (West 1999).

REQUESTED JURY INSTRUCTION NO. 25

SECOND ELEMENT – PERVASIVE RISK OF HARM

Inmates are protected from cruel and unusual punishment under the Eighth Amendment of the United States Constitution. Plaintiff Barnes claims that the Defendant Correctional Officers, violated Mr. Barnes’ Eighth Amendment constitutional rights by serving him a meal contaminated with glass. According to the Plaintiff, the guards caused glass to be placed in his tuna fish and were otherwise deliberately indifferent to his safety on September 18, 2002.

In order to prove plaintiff’s claim that plaintiff, Barnes, was subjected to cruel and unusual punishment, the burden is on the plaintiff to establish, by a preponderance of the evidence in the case, all of the following:

First: Defendant prison officials knew or should have known that the instances of food contamination experienced by plaintiff in the past made it highly foreseeable that plaintiff faced a serious threat of injury due to food contamination by prison officials and kitchen workers.

Second: Defendant prison officials were deliberately indifferent to plaintiff’s constitutional right to be free of cruel and unusual punishment, either because defendant prison officials intended to deprive plaintiff Barnes of some right, or because they acted with reckless disregard of plaintiff’s right to be free from meals containing glass and other contaminants.

Third: Such acts violated plaintiff’s constitutional right to be free from cruel and unusual punishment; and

Fourth: Defendant Prison officials’ conduct was the proximate cause of injury and consequent damage to plaintiff, Barnes.

REQUESTED JURY INSTRUCTION NO. 26

SECOND ELEMENT - CONDITIONS OF CONFINEMENT[1]

CRUEL AN UNUSUAL PUNISHMENT CAN TAKE MANY FORMS, INCLUDING THE CONDITIONS UNDER WHICH INMATES ARE CONFINED. PLAINTIFF, BARNES CLAIMS THAT THE CONDITIONS OF HIS CONFINEMENT IN UPSTATE CORRECTIONAL FACILITY WERE SUCH THAT THEY VIOLATED THE PLAINTIFF’S EIGHTH AMENDMENT RIGHTS IN THAT PLAINTIFF CLAIMS THAT PRISON GUARDS AND OTHER PRISON OFFICIALS PREPARED AND SERVED HIM FOOD THAT WAS CONTAMINATED WITH GLASS.

IN ORDER TO PROVE A VIOLATION UNDER THE EIGHTH AMENDMENT, PLAINTIFF, BARNES MUST PROVE ALL OF THE FOLLOWING ELEMENTS BY A PREPONDERENCE OF THE EVIDENCE:

FIRST: THAT THE CONDITIONS OF CONFINEMENT COMPLAINED OF BY PLAINTIFF, BARNES EXISTED BETWEEN JUNE AND SEPTEMBER, 2002

SECOND: THAT THE CONDITIONS OF CONFINEMENT WERE INHUMANE IN THAT CONDITIONS RESULTED IN A SERIOUS DEPRIVATION OF PLAINTIFF’S BASIC HUMAN NEEDS;

THIRD: THAT DEFENDANT PRISON OFFICALS WERE AWARE OF THE INHUMANE CONDITIONS OF CONFINEMENT COMPLAINED OF BY PLAINTIFF;

FOURTH: THAT DEFENDANT PRISON OFFICIALS, WITH DELIBERATE INDIFFERENCE TO THE INHUMANE CONDITIONS OF CONFINEMENT COMPLAINED OF BY PLAINTIFF, FAILED TO TAKE REASONABLE MEASURES TO CORRECT THOSE INHUMANE CONDITIONS;

FIFTH: THAT PLAINTIFF, BARNES WAS INJURED AS A RESULT OF DEFENDANT PRISON OFFICIALS’ DELIBERATE INDIFFERENCE TO THE INHUMANE CONDITIONS OF CONFINEMENT COMPLAINED OF BY PLAINTIFF;

IF PLAINTIFF FAILS TO PROVE ANY OF THESE ELEMENTS, YOU MUST FIND FOR THE DEFENDANT PRISON OFFICIALS.

IT IS NOT ENOUGH THAT THE CONDITIONS PLAINTIFF, BARNES COMPLAINS OF WERE RESTRICTIVE OR EVEN HARSH; THIS IS PART OF THE PENALTY THAT CRIMINAL OFFENDERS MUST PAY. RATHER YOU MAY FIND THAT THE CONDITIONS OF THE PLAINTIFF’S CONFINEMENT WERE CRUEL AND UNUSUAL ONLY IF THEY DEPRIVED PLAINTIFF, BARNES OF THE MINIMAL CIVILIZED MEASURE OF LIFE’S NECESSITIES. THE TEST IS AN OBJECTIVE ONE, AND IN APPLYING IT, YOU SHOULD BE GUIDED BY SOCIETY’S CONTEMPORARY STANDARDS OF DECENCY. WHAT YOU MUST DECIDE, THEN, IS WHETHER, UNDER THE CIRCUMSTANCES, THE CONDITIONS OF CONFINEMENT ABOUT WHICH PLAINTIFF, BARNES COMPLAINS DEPRIVED MR. BARNES OF THE MINIMAL MEASURE OF LIFE’S NECESSITIES OR NOT.

REQUESTED JURY INSTRUCTION NO. 27

BURDEN OF PROOF

Burden of Proof under Section 1983 [2]

The Plaintiff has the burden of proving each and every element of his Section 1983 claim by a preponderance of the evidence. If you find that any one of the elements of Plaintiff's Section 1983 claim has not been proven by a preponderance of the evidence, you must return a verdict for the Defendants.

The Defendants have the burden of proving each element of their affirmative defense. I shall shortly instruct you on the elements of this defense. If you find that any one of the elements of Defendants' defense has not been proven by a preponderance of the evidence, you must disregard the defense.

Qualified Immunity[3]

Even if you find that the Defendants did violate Plaintiff’s constitutional rights, however, the Defendants still may not be liable to the Plaintiff. This is so because the Defendants may be entitled to what is called a qualified immunity. If you find that they are entitled to such an immunity, you may not find them liable.

The Defendants will be entitled to a qualified immunity if they neither knew nor should have known that their actions were contrary to federal law. The simple fact that the Defendants acted in good faith is not enough to bring them within the protection of this qualified immunity. Nor is the fact that the Defendants were unaware of the federal law. The Defendants are entitled to a qualified immunity only if they did not know what they did was in violation of federal law and if a competent public official could not have been expected at the time to know that the conduct was in violation of federal law.

In deciding what a competent official would have known about the legality of Defendants' conduct, you may consider the nature of Defendants' official duties, the character of their official position, the information which was known to Defendants or not known to them, and the events which confronted them. You must ask yourself what a reasonable official in Defendants' situation would have believed about the legality of Defendants' conduct. You should not, however, consider what the Defendants' subjective intent was, even if you believe it was to harm the Plaintiff. You may also use your common sense. If you find that a reasonable official in Defendants' situation would believe their conduct to be lawful, then this element will be satisfied. The Defendants have the burden of proving that they neither knew nor should have known that their actions violated federal law. If the Defendants convince you by a preponderance of the evidence that they neither knew nor should have known that their actions violated federal law, then you must return a verdict for the Defendants, even though you may have previously found that the Defendants in fact violated the Plaintiff's rights under color of state law.

REQUESTED JURY INSTRUCTION NO. 28

COMPENSATORY DAMAGES

THE PLAINTIFF HAS ALLEGED THAT AS A RESULT OF DEFENDANTS’ ACTIONS HE SUFFERED MENTAL ANGUISH AND EMOTIONAL DISTRESS. THIS IS WHAT WE CALL COMPENSATORY DAMAGES. THE PLAINTIFF HAS THE BURDEN OF PROVING ANY COMPENSATORY DAMAGES BY A PROPONDERANCE OF THE EVIDENCE. IF PLAINTIFF DOES NOT ESTABLISH THAT HE EXPERIENCED MENTAL ANGUISH AND EMOTIONAL DISTRESS BECAUSE OF DEFENDANTS’ CONDUCT, THEN HE CANNOT RECOVER COMPENSATORY DAMAGES.

IF YOU DETERMINE THAT THE PLAINTIFF HAS PROVEN BY A PREPONDERANCE OF THE EVIDENCE THAT HE HAS EXPERIENCED MENTAL ANGUISH AND EMOTIONAL DISTRESS AS A PROXIMATE RESULT OF DEFENDANTS’ ACTS, YOU MAY AWARD HIM DAMAGES FOR THOSE INJURIES. NO EVIDENCE OF THE MONETARY VALUE OF SUCH INTANGIBLE THINGS AS PAIN AND SUFFERING HAS BEEN, OR NEEDS TO BE, INTRODUCED INTO EVIDENCE. NO EXACT STANDARD EXISTS FOR FIXING THE COMPENSATION TO BE AWARDED FOR THESE ELEMENTS OF DAMAGES. THE DAMAGES THAT YOU AWARD MUST BE FAIR COMPENSATION – NO MORE AND NO LESS.

IN CONSIDERING THE AMOUNT OF MONETARY DAMAGES TO WHICH THE PLAINTIFF MAY BE ENTITLED, YOU SHOULD CONSIDER THE NATURE, CHARACTER AND SERIOUSNESS OF ANY MENTAL ANGUISH AND EMOTIONAL DISTRESS THE PLAINTIFF FELT. YOU MUST ALSO CONSIDER ITS EXTENT OR DURATION, AS ANY AWARD YOU MAKE MUST COVER THE DAMAGES ENDURED BY THE PLAINTIFF SINCE THE WRONGDOING, TO THE PRESENT TIME, AND EVEN INTO THE FUTURE IF YOU FIND AS FACT THAT THE PROOF PRESENTED JUSTIFIES THE CONCLUSION THAT PLAINTIFF’S EMOTIONAL DISTRESS AND MENTAL ANGUISH AND THEIR CONSEQUENCES HAVE CONTINUED TO THE PRESENT TIME OR CAN REASONABLY BE EXPECTED TO CONTINUE IN THE FUTURE.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 104.06 (1987 and 1999 Supp.).

2. ABA Model Jury Instructions, Employment Litigation § 1.07 [3] (1994).

REQUESTED JURY INSTRUCTION NO. 29

PUNITIVE DAMAGES

IF YOU FIND THAT DEFENDANTS VIOLATED PLAINTIFF’S RIGHTS AS SECURED BY THE FIRST AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA, THE LAW ALLOWS YOU, BUT DOES NOT REQUIRE YOU TO AWARD PUNITIVE DAMAGES. THE DAMAGES ARE AWARDED IN CASES AS A PUNISHMENT OF DEFENDANTS AND AS A WARNING TO OTHERS TO KEEP THEM FROM FOLLOWING THE DEFENDANTS’ EXAMPLE. PUNITIVE DAMAGES ARE AVAILABLE AND MAY BE AWARDED AGAINST DEFENDANTS ON PLAINTIFF’S CLAIM. THE PURPOSE OF AN AWARD OF PUNITIVE DAMAGES IS, FIRST, TO PUNISH A WRONGDOER FOR MISCONDUCT, AND SECOND, TO WARN OTHERS AGAINST DOING THE SAME. IN THIS CASE, YOU MAY AWARD PUNITIVE DAMAGES IF YOU FIND THAT DEFENDANTS ENGAGED IN CONDUCT WITH MALICE OR RECKLESS INDIFFERENCE TO THE FEDERALLY PROTECTED RIGHTS OF THE PLAINTIFF.

IF YOU DETERMINE THAT DEFENDANTS’ CONDUCT JUSTIFIES AN AWARD OF PUNITIVE DAMAGES, YOU MAY AWARD AN AMOUNT OF PUNITIVE DAMAGE WHICH ALL JURORS AGREE IS PROPER. IN FIXING THE AMOUNT YOU SHOULD CONSIDER THE FOLLOWING QUESTIONS:

1) HOW OFFENSIVE WAS THE CONDUCT?

2) WHAT AMOUNT IS NEEDED, CONSIDERING THE DEFENDANTS’ FINANCIAL CONDITION TO PREVENT REPETITION OF THE CONDUCT?

3) DOES THE AMOUNT OF PUNITIVE DAMAGE HAVE A REASONABLE RELATIONSHIP TO THE ACTUAL DAMAGES AWARDED?

IF YOU DO AWARD PUNITIVE DAMAGES, YOU SHOULD FIX THE AMOUNT USING CALM DISCRETION AND SOUND REASON. YOU MUST NOT BE INFLUENCED BY SYMPATHY OR DISLIKE OF ANY PARTY IN THE CASE.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 74.02 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 30

EFFECT OF INSTRUCTION AS TO DAMAGES

THE FACT THAT I HAVE INSTRUCTED YOU AS TO THE PROPER MEASURE OF DAMAGES SHOULD NOT BE CONSIDERED AS INTIMATING ANY VIEW OF MINE AS TO WHICH PARTY IS ENTITLED TO YOUR VERDICT IN THIS CASE. INSTRUCTIONS AS TO THE MEASURE OF DAMAGES ARE GIVEN FOR YOUR GUIDANCE, IN THE EVENT YOU SHOULD FIND IN FAVOR OF THE PLAINTIFF FROM A PREPONDERANCE OF THE EVIDENCE IN THIS CASE IN ACCORDANCE WITH THE OTHER INSTRUCTIONS..

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 74.02 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 31

VERDICT – UNANIMOUS – DUTY TO DELIBERATE

THE VERDICT MUST REPRESENT THE CONSIDERED JUDGMENT OF EACH JUROR. IN ORDER TO RETURN A VERDICT, IT IS NECESSARY THAT EACH JUROR AGREE. YOUR VERDICT MUST BE UNANIMOUS.

IT IS YOUR DUTY AS JURORS TO CONSULT WITH ONE ANOTHER, AND TO DELIBERATE WITH A VIEW TOWARD REACHING, IF YOU CAN DO SO WITHOUT VIOLENCE TO INDIVIDUAL JUDGMENT. YOU MUST EACH DECIDE THE CASE FOR YOURSELF, BUT ONLY AFTER AN IMPARTIAL CONSIDERATION OF THE EVIDENCE IN THE CASE WITH YOUR FELLOW JURORS. IN THE COURSE OF YOUR DELIBERATIONS, DO NOT HESITATE TO RE-EXAMINE YOUR OWN VIEWS, AND CHANGE YOUR OPINION, IF CONVINCED IT IS ERRONEOUS. BUT DO NOT SURRENDER YOUR BEST CONVICTION AS TO THE WEIGHT OR EFFECT OF EVIDENCE SOLELY BECAUSE OF THE OPINION OF YOUR FELLOW JURORS, OR FOR THE MERE PURPOSE OR RETURNING A VERDICT.

REMEMBER AT ALL TIMES THAT YOU ARE NOT PARTISANS. YOU ARE JUDGES OF THE FACTS. YOUR SOLE INTEREST IS TO SEEK THE TRUTH FROM THE EVIDENCE IN THE CASE.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 74.01 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 32

ELECTION OF FOREPERSON – SPECIAL VERDICT

UPON RETIRING TO THE JURY ROOM, YOU WILL SELECT ONE OF YOUR NUMBER TO ACT AS FOREPERSON. THE FOREPERSON WILL PRESIDE OVER YOUR DELIBERATIONS, AND WILL BE YOUR SPOKESPERSON HERE IN COURT. A FORM OF SPECIAL VERDICT HAS BEEN PREPARED FOR YOUR CONVENIENCE. YOU WILL TAKE THIS FORM TO THE JURY ROOM.

[FORM OF SPECIAL VERDICT READ.]

YOU WILL NOTE THAT EACH OF THE FIRST TWO INTERROGATORIES OR QUESTIONS CALL FOR A “YES” OR “NO” ANSWER. THE ANSWER TO EACH QUESTION MUST BE THE UNANIMOUS ANSWER OF THE JURY. YOUR FOREPERSON WILL WRITE THE UNANIMOUS ANSWER OF THE JURY IN THE SPACE PROVIDED OPPOSITE EACH QUESTION. AS YOU WILL NOTE FROM THE WORDING OF THE QUESTIONS, IT WILL NOT BE NECESSARY TO CONSIDER OR ANSWER QUESTION (2) IF YOUR ANSWER TO QUESTION (1) IS “NO”. NOR WILL IT BE NECESSARY FOR YOU TO CONSIDER OR ANSWER QUESTION (3) UNLESS YOUR ANSWER TO QUESTION (1) IS “YES” AND YOUR ANSWER TO QUESTON (2) IS “NO”.

ACCORDINGLY, IF YOUR ANSWER TO QUESTION (1) IS “NO” OR IF YOUR ANSWER TO QUESTION (2) IS “YES”, THE FOREPERSON WILL DATE AND SIGN THE SPECIAL VERDICT, WITHOUT ANSWERING QUESTIONS (3), (4) AND (5). ON THE OTHER HAND, IF YOUR ANSWER TO QUESTION (1) IS “YES” AND (2) IS “NO”, THEN YOU WILL ANSWER QUESTIONS (3), (4) AND (5). THE FOREPERSON WILL THEN DATE AND SIGN THE SPECIAL VERDICT AS SO COMPLETED; AND YOU WILL RETURN WITH IT TO THE COURTROOM.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 74.05 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 33

VERDICT FORMS – JURY’S RESPONSIBILITY

IT IS PROPER TO ADD THE CAUTION THAT NOTHING SAID IN THESE INSTRUCTIONS AND NOTHING IN ANY FORM OF VERDICT PREPARED FOR YOUR CONVENIENCE IS MEANT TO SUGGEST OR CONVEY IN ANY WAY OR MANNER ANY INTIMATION AS TO WHAT VERDICT I THINK YOU SHOULD FIND. WHAT THE VERDICT SHALL BE IS YOUR SOLE AND EXCLUSIVE DUTY AND RESPONSIBILITY.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 74.05 (1987 and 1999 Supp.)

REQUESTED JURY INSTRUCTION NO. 34

COMMUNICATIONS BETWEEN COURT

AND JURY DURING DELIBERATIONS

IF IT BECOMES NECESSARY DURING DELIBERATIONS TO COMMUNICATE WITH THE COURT, YOU MAY SEND A NOTE BY A BAILIFF, SIGNED BY YOUR FOREPERSON OR BY ONE OR MORE MEMBERS OF THE JURY. NO MEMBER OF THE JURY SHOULD EVER ATTEMPT TO COMMUNICATE WITH THE COURT BY ANY MEANS OTHER THAN A SIGNED WRITING, AND THE COURT WILL NEVER COMMUNICATE WITH ANY MEMBER OF THE JURY ON ANY SUBJECT TOUCHING THE MERITS OF THE CASE OTHERWISE THAN IN WRITING, OR ORALLY HERE IN OPEN COURT.

YOU WILL NOTE FROM THE OATH ABOUT TO BE TAKEN BY THE BAILIFFS THAT THEY TOO, AS WELL AS ALL OTHER PERSONS, ARE FORBIDDEN TO COMMUNICATE IN ANY WAY OR MANNER WITH ANY MEMBER OF THE JURY ON ANY SUBJECT TOUCHING THE MERITS OF THE CASE. BEAR IN MIND ALSO THAT YOU ARE NEVER TO REVEAL TO ANY PERSON – NOT EVEN TO THE COURT – HOW THE JURY STANDS, NUMERICALLY OR OTHERWISE, ON THE QUESTIONS BEFORE YOU, UNTIL AFTER YOU HAVE REACHED A UNANIMOUS VERDICT.

Source: 1. Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 74.05 (1987 and 1999 Supp.)

-----------------------

2AUTHORITY: Matthew Bender, Modern Federal Jury Instructions §§ 87-65 – 66. (citing United States Supreme Court: Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982) ; Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976); Mitchum v. Foster, 407 U.S. 225, 92 S. Ct. 2151, 32 L. Ed. 2d 705 (1972) ; Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961).

[1] Devitt, Blackmar, Wolff and O’Malley, Federal Civil Jury Practice And Instructions, § 166.21 (2001)

[2] AUTHORITY: Matthew Bender, Modern Federal Jury Instructions §§ 87-67 (citing Gomez v. Toledo, 446 U.S. 635, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980)).

[3] Matthew Bender, Modern Federal Jury Instructions, Form 87-86 (citing Richardson v. McKnight, 521 U.S. 399, 117 S. Ct. 2100, 138 L. Ed. 2d 540 (1997) ; Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987) ; Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986); Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982); LaBounty v. Coughlin, 137 F.3d 68 (2d Cir. 1998) ; Velardi v. Walsh, 40 F.3d 569 (2d Cir. 1994) ; P.C. v. McLaughlin, 913 F.2d 1033 (2d Cir. 1990) ; Gittens v. LeFevre, 891 F.2d 38 (2d Cir. 1989) (and other cases) .

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